vs. ) CASE NO. 92-1077
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the above-styled case on January 15, 1992, in Fort Myers, Florida.
For Respondent: L. Kathryn Funchess, Esquire
Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard
Whether the Board of Trustees of the Internal Improvement Trust Fund should grant the request of the Sea Isles Condominium Association to modify an existing sovereignty submerged land lease to provide for four additional boat slips to an existing ten slip docking facility.
In 1987, the Board of Trustees of the Internal Improvement Trust Fund approved a sovereignty submerged land lease for the Petitioner to construct a ten slip boat docking facility. In 1991, the Petitioner requested that the lease be modified to provide for four additional boat slips. The Florida Department of Natural Resources, to which applications for lease are made, denied the request. The Petitioner thereafter requested formal administrative hearing. The request was forwarded to the Division of Administrative Hearings which scheduled and noticed the matter for hearing.
As grounds for the request, the Petitioner asserts that an initial miscalculation of shoreline resulted in the approved lease permitting fewer
slips that could have been allowed and that it is entitled to the additional slips. The Petitioner further asserts that the DNR is without authority to disapprove the request without forwarding the matter to the entire Board of Trustees.
Petitioner presented the testimony of two witnesses and had exhibits numbered 1-7 admitted. Respondent presented the testimony of three witnesses and had exhibits numbered 4-5 admitted. A prehearing stipulation was admitted as a Hearing Officer's exhibit.
A transcript of the hearing was filed. Both parties filed proposed recommended orders. The proposed findings of fact are ruled upon either directly or indirectly as reflected in this Recommended Order, and in the Appendix which is attached and hereby made a part of this Recommended Order.
Sea Isles Condominium Association (Petitioner) is the riparian owner of lands at 25714 Hickory Boulevard, Bonita Springs, Florida 33923. The Petitioner's lands lie along the Broadway Channel connecting the Gulf of Mexico to Estero Bay. There are 84 upland units in the condominium. Some condominium residents without docking slips have requested that the Petitioner apply for expansion of the existing facility.
The waters adjacent to Petitioner's upland property are located within the Estero Bay Aquatic Preserve (pursuant to Section 258.39(28), Florida Statutes) and are designated as Outstanding Florida Waters (OFW) by the Department of Environmental Regulation (DER).
At some point in approximately 1982, the condominium developer sought approval for the construction of docking facilities.
By letter of January 25, 1982, Richard P. Ludington, then Director of the Division of State Lands of the Department of Natural Resources (DNR), indicated that there was no objection to the proposed dock project. The parties to this case have jointly stipulated that the Ludington opinion was based on the fact that the proposed project was a private non-income producing facility (a lease therefore not being required) and was not in conflict with any existing rules.
The DER issued permit number 36-42521-5E, dated February 9, 1982, and the U.S. Army Corps of Engineers issued general permit number SAJ-33, both approving and authorizing the construction of the docking facility.
Although the water body had been designated as an aquatic preserve, there were no adopted administrative rules regulating such projects at the time of the initial dock construction.
The approved sixteen slip docking facility was constructed along the margin of the shoreline in 1983 by the developer of the condominium. Due to extremely shallow water depths, only two of the slips were accessible.
At some point thereafter, the Petitioner began efforts to remedy the unusable slip situation. Initially, the Petitioner desired to dredge the area, but was unable to secure approval to dredge from regulatory agencies.
The Petitioner then began to consider additional solutions. The solution upon which the Petitioner decided was removal of the existing slips and construction of an extended boardwalk and dock located in navigable water.
On March 28, 1985, the DNR notified the Petitioner that the project would require approval in the form of a submerged land lease from the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Board").
On August 20, 1985, the DER issued permit number 361011295, authorizing the removal of the existing structure and the construction of a 22 slip docking facility as proposed by the Petitioner.
On behalf of the Board, the DNR reviews applications for leases of sovereignty submerged lands. In reviewing such requests, the DNR calculates the maximum amount of sovereignty submerged lands which may be preempted by a proposed facility.
According to administrative rule, the area of sovereignty submerged land preempted by a private residential multi-slip docking facility may not exceed the total square footage equal to ten times the riparian waterfront footage of the affected waterbody.
DNR's calculation of the affected shoreline indicated that the Petitioner's riparian waterfront measured 433 feet. Application of the 10:1 ratio would indicate that the area of sovereignty submerged land preempted by the proposed multi-slip docking facility could not exceed 4330 square feet.
As early as 1986, a surveyor employed by the Petitioner believed the DNR shoreline calculation to be erroneous and determined the Petitioner's riparian shoreline to be 601 feet.
After discussing the discrepancy between measurements, the DNR representative informed a representative of the Petitioner that Sea Isles could obtain a mean high waterline survey to determine the actual shoreline footage if it disagreed with the DNR calculation.
Although there is testimony that a survey provided to the DNR established the mean high waterline, the greater weight of the evidence establishes that the survey was not identified as a mean high waterline survey, but as a safe upland line survey. No credible mean high waterline survey was provided to the DNR by the Petitioner at that time.
Abutting the Petitioner's property to the south is a man-made channel which results in an unnatural extension of the shoreline. Such extensions are not included in computing the allowable square footage of sovereign submerged lands because the man-made shoreline does not abut sovereign submerged lands. It is unclear whether the calculations of shoreline were affected by this consideration.
Despite the discrepancy, the Petitioner reduced the size of the requested docking facility to include a boardwalk and dock of ten slips totalling approximately 4300 square feet and extending 208 feet into the waterbody (approximately 35 percent of the waterbody's width).
The length of the extension violates administrative rule provisions governing extension into a waterbody which are addressed elsewhere herein.
On July 23, 1986, Lee County passed a resolution of approval for the proposed docking facility land lease and granted a variance to Lee County Ordinance 85-25. The resolution of approval contained additional requirements, included a provision restricting the approval to not more than ten slips.
The Petitioner asserts that the determination of shoreline was incorrect and was the result of "mutual mistake". The evidence fails to establish that the Petitioner's acceptance of the DNR's shoreline determination was based upon "mutual mistake."
The evidence establishes that the Petitioner's representatives were aware of the discrepancy. The fact that the Petitioner agreed to deed a 575 foot conservation easement to the Board (to offset the potential adverse impact on manatee habitat as discussed elsewhere herein) would suggest that the parties were aware that the 433 foot measurement was inaccurate. For whatever reason, the Petitioner agreed to the DNR shoreline and dock calculation which formed the basis for the lease approved by the Board.
Prior to approval of the lease, the Board reviewed a written "public interest" assessment which indicates that the length of the boardwalk to the proposed docking facility exceeded standards set by administrative rules. Pursuant to rule, exceptions to length restrictions may be made only where the applicant demonstrates that such exception is necessary to insure reasonable riparian ingress and egress. The Petitioner apparently demonstrated that, given the location of the existing sand flat, such exception was necessary to provide ingress and egress.
According to the written analysis, the proposed project adversely impacted the manatee habitat located in the aquatic preserve. The analysis states that 575 foot conservation easement to the Board would offset the potential adverse impact on manatee habitat. The Petitioner committed to the conservation easement in order to meet the public interest test required of all docking facilities within an aquatic preserve.
Special lease condition paragraph 5 requires the Petitioner to record a conservation easement for approximately 575 linear feet of shoreline in perpetuity to run with the land. The provision requires that documentation of the recording of the easement be provided to the Board within thirty days of the Board action and prior to execution of the lease.
The lease conditions clearly indicate that the Petitioner will not seek authority to expand the docking facility. Special lease condition paragraph 5 prohibits any additional docking facilities or any other such development along the lessee's shoreline.
Review of proposed special lease condition paragraph 6 (as compared to the staff recommendation and a subsequent affidavit executed by the Petitioner's representative on June 6, 1987) indicates that the paragraph appears to contain a typographical error in deleting the word "not" from the condition. The greater weight of the evidence establishes that the Petitioner agreed not to request authorization to dredge the docking area or channel or to request additional expansion of the facility.
On April 21, 1987, the Board, apparently acting against the staff recommendation, voted to grant to the Petitioner a submerged land lease for the
construction of a ten slip facility. Representatives of the Petitioner appeared before the Board during consideration and approval of the lease.
On June 6, 1987, a representative of the Petitioner executed an affidavit on behalf of the Petitioner which sets forth the language of special condition paragraph six as originally proposed. In the affidavit, the Petitioner's representative agrees not to apply for authorization to dredge the dock or access channel, or to request expansion of the facility.
A deed of conservation easement dated October 21, 1985, and signed by a representative of the Petitioner, was attached to the materials submitted to the Board for the April 21, 1987 meeting. Contrary to the lease requirement, the attached deed of conservation easement was never recorded.
In 1986 or 1987, a conservation easement was recorded by the Petitioner in favor of the Board, but the easement contained no legal description of the subject property. However, the recorded easement does prohibit additional docking facilities and waives the Petitioner's rights of ingress or egress related to any such additional facilities.
In early 1991, the Petitioner requested approval to expand the existing dock from 10 to 14 slip. The expanded structure would preempt 5620 square feet of sovereign submerged land.
On May 15, 1991, the DER granted approval of the four slip expansion.
On November 27, 1991, the DNR, by letter signed by Michael E. Ashley, Chief of the Bureau of Submerged Lands and Preserves, denied the requested four slip expansion. The letter was prepared at the direction and with the approval of the Director of the Division of State Lands.
Mr. Ashley cites two reasons for the denial. First, the request violated the terms of the existing lease which provides that there will be no expansion requested. Second, the Petitioner had failed to record the 575 foot conservation easement which was required by the terms of the original lease.
The request for extension was not presented to the Governor and Cabinet for consideration, but was reviewed by the "agenda review committee" of the DNR. The committee includes the Deputy Director, two Deputy Assistant Executive Directors, the General Counsel, and the Cabinet Coordinator for the DNR. The committee reviews matters which are identified as potentially requiring Board action to resolve.
Where issues exist related to existing sovereignty submerged land leases, the DNR attempts to resolve the matter without referral to the Board. The authority to conduct business in this manner has not been reduced to writing, but is based on verbal direction from the Board and from Cabinet assistants.
Subsequent to the letter of denial issued by Mr. Ashley, the Petitioner on or about December 30, 1991, filed a conservation easement granting to the Board, a perpetual interest in a parcel of land lying ten feet landward of the Safe Upland Line as described in the deed recorded in the records of Lee County, Florida, (OR 2268, Page 0401) with the Clerk of Court for Lee County. The parcel of land identified in the deed runs along the shoreline for a distance of 601 feet. The easement provides for modification by the signed agreement of the parties.
Because the Petitioner seeks to expand an existing lease, it is required to demonstrate an additional public benefit would result from approval of the request. The Petitioner has proposed to plant an area of mangroves in the shallow "sand bar" area located behind the existing slips. There is no additional public benefit related to the request. The evidence fails to establish that granting the request to expand the docking facility is in the public interest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The Petitioner has the burden of proof in establishing entitlement to the requested modification of the existing lease and extension of the docking facility. Florida Department of Transportation v. JWC Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). In this case, the burden has not been met.
The Board of Trustees of the Internal Improvement Trust Fund is charged with the administration, management, control, supervision, conservation, and protection of sovereign submerged lands. Section 253.03, Florida Statutes. No person may commence any construction or other activity involving the use of sovereign lands until such person has received from the Board of Trustees, the required lease authorizing the proposed use. 253.77, Florida Statutes.
Pursuant to Section 258.39(28), Florida Statutes, relevant portions of sovereignty submerged lands in Lee County, Florida have been designated as the Estero Bay Aquatic Preserve. An "aquatic preserve" is an exceptional area of submerged lands and its associated waters set aside for being maintained essentially in its natural or existing condition. Section 258.37(1), Florida Statutes. The Board has promulgated rules adopting management policies, standards and criteria which are utilized in determining whether to approve, approve with conditions or modifications or deny requests for activities on sovereign lands within aquatic preserves. Rule 18-20.004, Florida Administrative Code.
In 1987, the Board approved with conditions the request of the Petitioner for a lease of sovereignty submerged lands within the Estero Bay Aquatic Preserve. Insofar as relevant to this case, the conditions were two: 1) a conservation easement would be timely recorded; and 2) the Petitioner would not request that the approved dock facility be expanded.
The Petitioner failed to meet the conditions of the lease in that the conservation easement was not timely recorded (and when recorded was incomplete) and by requesting expansion of the existing facility.
The Petitioner asserts that it is entitled to additional dock space because the DNR calculation of the Petitioner's shoreline was allegedly erroneous. The evidence does not support the assertion. Prior to Board approval of the original lease agreement, a surveyor employed by the Petitioner disputed the DNR shoreline calculation. The matter was discussed by the parties and the DNR representative advised the surveyor on the manner in which the DNR determination could be challenged. For whatever reason, the Petitioner knowingly chose to reduce the size of the facility to comply with the DNR
shoreline determination and agreed not to seek an expansion of the facility. The evidence fails to justify revisiting the issue.
The Petitioner asserts that application of the Rule 18-20.004, Florida Administrative Code, requires that the request for expansion be approved. Rule 18-20.004(4)(b), Florida Administrative Code, provides that the evaluation and determination of the reasonable riparian rights of ingress and egress for private residential multi-slip docks shall be based upon the number of linear feet of riparian shoreline. The rule provides that the evaluation and determination of the reasonable riparian rights of ingress and egress for private residential multi-slip docks shall be based upon the number of linear feet of riparian shoreline, Rule 18-20.004(4)(b), Florida Administrative Cod, and further provides that the area of sovereignty submerged land preempted by a private residential multi-slip docking facility shall not exceed the square footage amounting to ten times the riparian waterfront footage of the affected waterbody of the applicant. Rule 18-20.004(5)(c)1., Florida Administrative Code, (emphasis supplied).
The cited rule was in existance when the lease agreement was first executed by representatives of the Petitioner and the Board. Any right to challenge the rule or the application of the rule to the facts in this case was waived when the parties entered into the original lease. There are no facts which justify a modificaiton of the existing lease agreement to provide for expansion of the current facility.
Finally it should be noted that, even were this request unrelated to any prior or existing lease, the request would be properly denied. Sale, lease, or transfer of sovereignty lands is statutorily prohibited except where such is in the public interest. Section 18-20.004(2), Florida Administrative Code, sets forth the criteria to be used in determining whether a lease is in the public interest.
In evaluating requests for the lease of sovereign submerged lands, a balancing test is utilized to determine whether the social, economic and/or environmental benefits clearly exceed the costs. Rule 18-20.004(2), Florida Administrative Code. Any benefits that are balanced against the costs of a particular project shall be related to the affected aquatic preserve. Rule 18- 20.004(2)(b)1., Florida Administrative Code.
Because the addition of dock slips would likely result in additional marine traffic in the aquatic preserve, the approval of this request would result in increased navigational hazards and congestion, identified at Rule 18- 20.004(2)(c)5., Florida Administrative Code, as a type of "cost" which must be considered in determining whether approval of a lease should be granted. The Petitioner's offer to plant mangroves in a portion of the existing sand flat is the public benefit proposed to balance the increased navigational congestion. The evidence is insufficient to establish that such action would be sufficient to meet the public benefit test.
The Petitioner introduced a videotaped "tour" of the surrounding area, intending to display the larger dock facilities which neighboring condominium residents enjoy. The evidence fails to establish whether any of the docking facilities identified were constructed under valid permits or whether they are currently in compliance with the rules cited herein. The videotape is irrelevant.
The Petitioner finally asserts that this request should have been forwarded to the entire Board for determination, rather than being rejected by the DNR at the staff level.
The DNR Division of State Lands performs all staff duties and functions related to acquisition, administration, and disposition of state lands, title to which is or will be vested in the Board of Trustees. Section 253.002, Florida Statutes.
There was uncontradicted testimony that the Board has delegated, albeit orally, such responsibility for such matters to the DNR. While a written delegation would clarify this issue, in the absence of credible information to the contrary, the evidence establishes that the DNR has the authority to act in this case. In that this Recommended Order is issued to the Board of Trustees for their consideration, the Petitioner's request to have the matter considered by the Board has been satisfied.
Based on the foregoing, it is hereby RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund enter a Final Order denying the request of Sea Isles Condominium Association to modify the existing sovereignty submerged land lease to provide for four additional boat slips to their existing ten slip docking facility.
DONE and RECOMMENDED this 15th day of April, 1993 in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1993.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1077
The following constitute rulings on proposed findings of facts submitted by the parties.
The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
17. Rejected, not supported by the greater weight of credible and persuasive evidence.
19. Rejected as to comments by Miller, irrelevant. 20-21. Rejected, irrelevant.
The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows:
16. Rejected, unnecessary.
c/o Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard
L. Kathryn Funchess, Esquire Assistant General Counsel Department of Natural Resources 3900 Commonwealth Boulevard Mail Station #35
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
